Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
DOLORES QUIROGA AND LA PALANCA, LLC D/B/A DICKEY'S BARBEQUE PIT, Appellants,
EL PISTOLON II, LTD, Appellee.
appeal from the 93rd District Court of Hidalgo County, Texas.
Justices Benavides, Hinojosa, and Perkes
GREGORY T. PERKES JUSTICE
El Pistolon II, Ltd. obtained a default judgment on its
breach of contract claims against appellants Dolores Quiroga
and La Palanca, LLC d/b/a Dickey's Barbeque Pit
(Dickey's). The trial court denied appellants' bill
of review. On appeal, Dickey's contends that service was
defective because it was not served at the address designated
for its registered agent. Both appellants contend that the
trial court erred by applying the wrong evidentiary standard
to the bill of review. We affirm.
January 17, 2012, appellee filed a lawsuit against appellants
to recover damages for breach of a commercial lease
agreement. Dolores Quiroga allegedly signed the lease
agreement as the authorized agent of Dickey's and as
personal guarantor. The next day, the Hidalgo County District
Clerk issued a citation to be served on Dolores Quiroga at
1711 Lauren Lane, Mission, Texas 78572.
February 14, 2012, the trial court granted appellee's
motion for substituted service of process. The trial court
ordered that service be had on:
Defendant DOLORES QUIROGA by leaving a true copy of the
citation and the attached Petition by attaching said citation
and petition on the front door of Dolores Quiroga's usual
place of abode at 2903 Santa Olivia, Mission, Texas
78572-7602 and by any other manner that will be reasonably
effective to give the Defendant notice of suit; and
Defendant LA PALANCA, LLC D/B/A DICKEY'S BARBECUE by
leaving a true copy of the citation and the attached petition
by attaching said citation and petition on the front door of
La Palanca's registered agent, Dolores Quiroga's
usual place of abode at 2903 Santa Olivia, Mission, Texas
officer's return was filed several days later stating
that Dolores Quiroga was served "in person" at the
Santa Olivia address.
fourteen months later, on April 5, 2013, the
trial court granted appellee's motion for default
judgment. Since the damages were unliquidated, the court
considered evidence on damages and awarded appellee the sum
of $432, 819.13.
October 17, 2016, appellants filed their petition for bill of
review, which was assigned to the same trial court that
granted the default judgment, but under a new cause number.
Appellants acknowledged that service of process was executed
in compliance with the order for substituted service but
contended that: (1) neither party received notice of the
lawsuit; (2) each had a meritorious defense because appellee
mitigated its damages after the judgment; and (3)
appellee knew of but failed to serve the parties at their
specifically, Dickey's acknowledged that Dolores Quiroga
was its registered agent but asserted that the correct
address for such purposes was 1711 Lauren Lane, Mission,
Texas 78572, not her purported home address at 2903 Santa
Olivia, Mission, Texas 78572-7602. Dolores Quiroga implicitly
denied that the Santa Olivia address was her actual home
address, alleging "[appellee] knew the whereabouts of
[her] residence and or persons who knew her whereabouts but
wholly failed to serve her."
to appellants' petition were copies of the order granting
substituted service, a citation addressed to Dolores Quiroga
individually and the corresponding officer's return, and
the default judgment. Also attached to the petition was an
affidavit by Dolores Quiroga in which she attests that she
"was never given a copy of the citation ...